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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LINDA HUDSON AND STEPHANIE

HUDSON

V.

WILBERTO GONZALEZ & DOLLAR RENT

A CAR SYSTEMS, INC., & RENTAL CAR

FINANCE CORP. 

: CIVIL ACTION

:

:

:

:

: NO. 02-4365

DEFENDANT’S RESPONSE MEMORANDUM TO PLAINTIFF’S 

MOTION TO COMPEL DISCOVERY RESPONSES

I. INTRODUCTION

Defendants, Wilberto Gonzalez, Dollar Rent A Car Systems, Inc., & Rental Car

Finance Corp., moves this Court to deny the Plaintiff’s Motion to Compel discovery

because Defendant, Gonzalez’s statement is protected pursuant to F.R.C.P. 26(b)(3), the

work product doc trine. 

This is a case involving a personal injury ac tion arising out of a one-vehicle

automobile accident that took place on December 31, 2001. At the time of the accident,

the Plaintiffs, Linda and Stephanie Hudson, were passengers in a Rent-A-Car vehicle

operated by Defendant, Wilberto Gonzalez. The Plaintiffs served interrogatories on the

Defendants on August 26, 2002. Interrogatories are attached hereto as Exhibit “A.” The

Defendants served complete answers to these interrogatories on November 4, 2002. 

Answers are attached hereto as Exhibit “B.” 

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The Plaintiffs contend that the Defendants did not serve the Plaintiffs with a

complete answer to question thirty (30) of said interrogatories. This is an incorrect

contention. Under the work product doctrine first enunciated in Hickman v. Taylor, 329

U.S. 495, 91 L.Ed. 451, 67 S. Ct. 385 (1947), later codified in F.R.C.P. 26(b)(3), the

Plaintiffs request for the Defendant’s “signed written statement” should be denied

because the statement is not discoverable under the Federal Rule. Hence, Defense

counsel was correct when he stated in his letter dated November 26, 2002, that under the

Federal Rules, Wilberto Gonzalez’s signed statement was not discoverable. Accordingly,

Plaintiffs motion to compel should be denied.

II. LEGAL ARGUMENT

F.R.C.P. 26(b)(3) sets forth the work product doctrine as follows:

(3) . . . . a party may obtain discovery of documents and tangible things otherwise

discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation

or for trial by or for another party or by or for that other party’s representative (including

the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a

showing that the party seeking discovery has substantial need of the materials in the

preparation of the party’s case and that the party is unable without undue hardship to

obtain the substantial equivalent of the ma terials by other means. In ordering discovery

of such materials when the required showing has been made, the court shall protect

against disclosure of the mental impressions, conclusions, opinions, or legal theories of

an attorney or other representative of a party concerning the litigation. 

The Advisory Committee Notes to F.R.C.P. 26(b)(3) states that Rule 26(b)(3)

reflects a trend that “requires a special showing not merely as to materials prepared by an

attorney, but also to materials prepared in anticipation of litigation or preparation for trial

by or for a party or any representative acting on his behalf.” The Advisory Committee

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notes then explain that Rule 33, the rule concerning interrogatories, has been revised to

permit the discovery of opinions, contentions and admissions relating to fact and the

application of law to fact. However, the notes go on to state that documents or parts of

documents which contain the mental impressions, opinions or conclusions of a party or

his attorney are protected against discovery under F.R.C.P. 26(b)(3).

As the following argument will demonstrate, the Plaintiffs have not shown the

substantial ne ed and undue hardship necessary in orde r to obtain the Defendant,

Gonzalez’s statement.

B. The Defendant’s Statement is not discoverable under F.R.C.P. 26(b)(3) 

because the Plaintiffs have met their burden to show a substantial need 

and undue ha rdship and bec ause the statement is protected by the work 

product doctrine.

The Plaintiffs contend in their memorandum of law in support of their motion to

compel tha t they are entitled to a copy of the signed statement given by the Defendant,

Gonalez. See Exhibit “C.” This is incorrect. In order to obtain the statement, the

Plaintiffs must demonstrate that they have a substantial ne ed for the statement in

preparation of their case and that the party cannot obtain the statement without undue

hardship pursuant to F.R.C.P. 26(b)(3). The Plaintiffs stated in their motion that

“Plaintiffs contend that pursuant to F.R.C.P. 26(b)(3), Plaintiffs are entitled to the

aforesaid statement previously made by Defendant Gonzalez, which concerns the current

action and/or its subject matter.” Hence, the Plaintiffs have not shown a substantial need

and have not met their burden.

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Moreover, United States Court for the Eastern District of Pennsylvania in Peerless

v. Mestek Inc., 1999 U.S. Dist. LEXIS 19105 (E.D. PA 1999), interpreted F.R.C.P.

26(b)(3). The Eastern District stated that the rule codified the work product doctrine and

that the doctrine acts to promote the adversary system by protecting confidentiality of

documents prepared by or on behalf of attorneys and/or parties in anticipation of

litigation. See Peerless, 1999 U.S. Dist. LEXIS 19105. The court went on to state that

“[t]raditionally, witness statements have been accorded work product protection because

they reflect the attorney’s thoughts and impressions from witness interviews.” Id. (citing,

Hickman v. Taylor, 329 U.S. 495 (1947), 8 WRIGHT & MILLER, FEDERAL PRACTICE AND

PROCEDURE: CIV. 2D, § 2028 (1994)). In this ca se, the plaintiffs sought to obtain

affidavits drafted by defense counse l following interviews of witnesses. The court held

that the affidavits were protected under the work product doctrine. 

Further, the Eastern District in Carson v. Mar-Tee Inc., 1996 U.S. Dist. LEXIS

2884 (E.D. PA 1996), denied Plaintiff’s motion to compel a statement of the agent driver

made to the Defendant’s insurance adjuster after the accident pursuant to F.R.C.P.

26(b)(3). The Defendant claimed that the statement fell within the work product doctrine

because the statement was taken of one Defendant by another Defendant; the statement

was taken after the Plaintiff had notified the insurer of her claims and; that litigation was

certain given the fact that there was a rear end vehicular accident. The court found that

this statement was taken in anticipation of litigation and as a result the protection of

F.R.C.P. 26(b)(3) applied. Therefore, the Plaintiffs had to show that they had a

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substantial ne ed for the statement. The court found that the Plaintiffs had not met their

burden and therefore, the statement was protec ted under Rule 26(b)(3).

Additionally, the plaintiffs cited the case Rintchen v. Walker, 1996 U.S. Dist.

6104 (E.D. PA 1996). This case also recognizes the work product doctrine and found

that the work product doctrine protects the work product of a party or its agents, and

representatives and the party’s attorney. The Eastern District found that “it is within the

court’s discretion not to compel discovery which is improper.” Rintchen, 1996 U.S. Dist.

LEXIS 6104. 

Therefore , under the Federal Rules and the appropriate case law, the Defendant,

Gonzalez’s statement is not discoverable under F.R.C.P. 26(b)(3). First, the statement

was made by a party. Second, since litigation was a certainty in this case because the

facts of the ca se involve a one -car accident, the statement was clearly made in

anticipation of litigation. Moreover, the Pla intiffs have not met their burden to

demonstrate a substantial need for the statement under F.R.C.P. 26(b)(3). The Plaintiffs

in their motion stated that they wanted to obtain a copy of the statement and that they

asked for the statement in Interrogatory No. 30. See Exhibit “ A.” Hence, the foregoing

facts and authorities indicate that the Plaintiff’s Motion to Compel should be denied.

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III. CONCLUSION

For all the rea sons expla ined above, Plaintiffs, Linda Hudson and Stephanie

Hudson’s Motion to Compel Production of the Statement of Defendant Wilberto

Gonzalez, should be denied.

MARGOLIS EDELSTEIN

BY: 

JOSEPH GOLDBERG, ESQUIRE

I.D. No. 21376

ROBERT D. MACMAHON, ESQUIRE

I.D. No. 54367 

Attorneys for Defendants Dollar Rent A Car

Systems, Inc. and Rental Car Finance Corp. and

Wilberto Gonzalez

The Curtis Center - Fourth Floor

Independence Square West

Philadelphia, PA 19106-3304

(215) 931-5892

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